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  • July 27, 2018

Worker not entitled to vehicle running expenses and accommodation

Worker not entitled to vehicle running expenses and accommodation

Worker not entitled to vehicle running expenses and accommodation 960 577 aelegal

(BRIGGS -v- WACHS – PILBARA (HEDLAND HEALTH CAMPUS) [2018] WADC 73)

The Hedland Health Campus employed Mr David Briggs (Mr Briggs) as a Registered Nurse. In March 2016, Mr Briggs was assaulted at work as a result of which he suffered an injury to his left shoulder. The employer accepted liability. In February 2017 Mr Briggs drove from South Hedland to Perth and back to see an approved medical specialist, Dr Cordova. The question which arose for determination was whether the employer was obliged to pay Mr Briggs’ vehicle running expenses, together with meals and accommodation in the sum of $1,996.08.

In order to answer that question, it was necessary for the Court to determine which clause of schedule 1 to the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) applied.

An approved medical specialist such as Dr Cordova may be required to make an assessment of a worker, the approved specialist is required to give to the worker and the employer a written report of the worker’s degree of impairment, including details of the assessment and reasons justifying the assessment and a certificate specifying the worker’s degree of impairment.

Clause 17(1aa) of Schedule 1 to the Act provides that a worker can claim for certain specified expenses for his/her first assessment or attempt at an assessment for the purposes of s 93L of the Act (which this was) but not including the cost of any travel, meals, or lodging.

Clause 19(3A) of Schedule 1 to the Act provides that where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist the employer is liable to pay the worker’s vehicle running expenses, reasonable fares and expenses and reasonable cost of meals and lodging.

Considering the two clauses above, the Court applied the principle that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.  That principle of harmonious construction applies to the construct ion of provisions within different statutes of the same legislature to create a very strong presumption that the legislature did not intend to contradict itself but intended that both should operate.

Clause 17(1aa) is confined by its express words to expenses arising from a s 93L assessment.  Clause 19(3A) deals with any case where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist or panel.  Clause 19(3A) includes but is not limited to s 93L assessment.  Clause 19(3A) is therefore wider in its potential application than cl 17(1aa).

There is a principle of statutory interpretation that where there is a conflict between two sections of an act and where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision in so far as it is inconsistent with the special provision, must be deemed not to apply.

Applying that principle, the Court was satisfied that the arbitrator was correct in concluding that the two provisions can in fact be read together.  Although cl 19(3A) expressly contemplates the payment of a worker’s travelling expenses where a worker travels in order to have their degree of impairment assessed by an approved medical specialist, there are a number of reasons for such an assessment.  Clause 19(3A) provides for travel, meal and lodging expenses for all attendances for the purposes of common law assessments (s93L).  In the latter scenario the position is governed by cl 17(1aa). The Court was not prepared to disregard the plain words of the clauses, as there is a longstanding principle of statutory interpretation that all words in legislation should (where possible) be given meaning and effect therefore, those exclusionary words do not apply only to expenses payable under cl 17 and declined to construe the Act so as to conclude that a worker is compensated for medical and other expenses under cl 17(1) whilst, notwithstanding cl17(1aa), paid the associated travel and other expenses under cl 19.

Therefore, the employer was not obliged to pay Mr Briggs’ vehicle running expenses, together with meals and accommodation in the sum of $1,996.08.

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